Obama’s plan leaves gray area on gun possession for mentally ill

The conspicuous empty chair next to the first lady at President Barack Obama’s State of the Union address a week ago might have stood for Louisiana residents Mayci Breaux and Jillian Johnson, the young women shot dead in a Lafayette movie theater in July.

The vacant seat, intended to symbolize victims of gun violence across the U.S., was a reminder of the gun control proposals Obama announced earlier this month, one of which would invest $500 million in mental health care to make it easier for states to report mentally ill people with violent tendencies to the federal background check database.

But experts say it’s unclear what impact the president’s proposals will have in Louisiana with regard to mental health and whether the measures would prevent another John “Rusty” Houser from purchasing firearms to commit random violence, not to mention stopping perpetrators in the scores of domestic and other low-profile killings that occur annually in a state with one of the highest per capita gun death rates in the nation.

Experts also emphasize the majority of gun deaths in the U.S. are not linked in any way to mental illness.

Houser, 59, legally bought a gun in Alabama, later killing two and injuring nine in the Lafayette Grand 16 Theatre on July 23, 2015, despite a history of serious mental illness, domestic violence, hospitalizations and bizarre acts like trying to hire an arsonist to torch another man’s office.

Louisiana’s laws would have allowed Houser to buy a gun despite his mental health background. Though he’d been hospitalized, Houser was never committed by a judge, a specific court action that is considered a high bar to clear in order to be reported under Louisiana law to the FBI’s National Instant Criminal Background Check System, often called NICS.

Repeated visits with a psychiatrist because of violent episodes, for example, would not prompt someone’s name to appear on the background check list.

That leaves many Louisianians in a gray area as to whether the mentally ill should be able to possess firearms, even as people on both sides of the gun divide say there is a need to address access to guns by those who are both mentally ill and violent.

But even within this narrow sliver of agreement about beefing up background checks or possibly expanding gun ownership restrictions, there hasn’t been much movement at the national level.

“We are really at a brick wall,” said National Alliance on Mental Health Louisiana Executive Director Nicole McGee, “because you can’t make someone go into treatment if they are not harming themselves or someone else. That’s how so many people slip into the cracks and then are able to have access to firearms. … Sometimes people’s first introductions to the mental health system is when they enter jail.”

The only way Louisianians can be flagged by the NICS database — and therefore fail a background check when trying to buy a gun — is if they’re a convicted felon, found not guilty by reason of insanity, deemed incompetent to stand trial, judicially committed or subject to a court order barring them from having a firearm.

In 2015, Louisiana reported 1,680 cases to NICS: 526 people who were ruled incompetent to stand trial, 80 found not guilty by reason of insanity and 1,074 who were judicially committed, according to statistics provided by the Louisiana Supreme Court, the state agency in charge of sending the data to the FBI.

The reporting of those cases, along with 761 records submitted the year before, were the result of a Louisiana law that went into effect Jan. 1, 2014, and mandated NICS compliance.

Qualifying cases from previous years would not be reported since the law isn’t retroactive, said state Supreme Court spokeswoman Valerie Willard.

Obama’s executive action seeks to enforce and demystify the existing federal laws on who should be reported to NICS, rather than expand those laws.

He directed the Social Security Administration to report to NICS names of an estimated 75,000 people each year who are a danger to themselves or others or are unable to handle their own affairs. And it would clarify under the Department of Health and Human Services that states may report mental health records to NICS without violating the Health Insurance Portability and Accountability Act — an issue that shouldn’t directly affect Louisiana since its NICS reporting law was designed to be in compliance with HIPAA.

The order also aims to improve access to behavioral health care with a $500 million investment to prevent suicide and “protect the health of children and communities,” but the White House did not provide details on exactly how or where the money would be spent. The funds would also have to be appropriated by Congress.

While some states have expanded restrictions on certain mentally ill people owning guns, that idea hasn’t taken root in Louisiana.

For some, the focus instead has been on expanding access to mental health treatment.

In October, U.S. Sen. Bill Cassidy, R-La., responding to the “weekly tragedies” of gun violence, introduced legislation with U.S. Sen. Chris Murphy, D-Conn., that would make states eligible for $2 million in mental health funding for five years with additional funds available for the treatment of low-income individuals. The measure seeks to integrate mental and physical health care, establish early intervention for children as young as 3, enhance mental health care for Medicaid patients and institute a dedicated mental health and substance abuse official under the U.S. Department of Health and Human Services.

Gov. John Bel Edwards, in a prepared statement sent by spokeswoman Julie Baxter Payer, said, “We must preserve the Second Amendment constitutional right to bear arms. In addition, we must ensure that we better guard against guns ending up in the hands of Louisiana citizens who are a threat to themselves and/or others due to mental illness.”

Edwards in his first week in office signed an executive order to expand Medicaid coverage, which could benefit about 300,000 people in the state. A Department of Health and Hospitals spokeswoman, Amelia Burns, said this means more people will benefit from services under Bayou Health, Louisiana’s privatized Medicaid plan, including psychiatric residential treatment, therapeutic group homes, crisis intervention, family counseling and other programs.

Edwards, in the statement, said the Medicaid expansion is the first step in his commitment to “reinvesting in mental health services for our citizens.”

But some observers, including state Rep. Terry Landry, D-New Iberia, say while improvements to mental health care are welcome, the fixation on mental illness in the wake of gun violence is misinformed, or worse, a distraction by politicians who want to talk about anything but changing gun laws.

“It’s an excuse, and a way to deflect from the real cause and problem,” said Landry, a former State Police superintendent, who said he agrees with the need to enhance behavioral health care. But as a proud gun owner, he said the effort should be paired with what he calls “sensible gun restrictions.”

“I believe in responsible ownership. I don’t carry guns to church or a public meeting,” he said, noting his views haven’t gotten much traction in the Legislature. “If there’s a place I’m afraid to go, I don’t go. I don’t think everyone being armed is the solution to prevent violence.”

Some health experts say the issue of gun violence has been too easily tied to mental illness, a misconception driven by headline-grabbing mass killers who happen to have had mental health issues.

“That should not be a knee-jerk reaction that you think ‘mentally ill’ when you hear of gun violence,” said Dr. Rochelle Head-Dunham, the top-ranking mental health official at the state Department of Health and Hospitals.

“I think that there’s some branding and brainwashing that’s going on in prompting people to think that way, but I think it’s clearly because people just don’t understand mental illness,” she said.

Mentally ill people are more likely to be victims rather than perpetrators of violence, Head-Dunham said.

Ari Freilich, staff attorney at the Law Center to Prevent Gun Violence, said talking about mental illness “is a necessary but insufficient part of the debate.”

“It is true the majority of gun violence and gun homicides are not perpetrated by mentally ill individuals. They do play a disproportionate role in mass shootings, but everyday gun violence hitting Baton Rouge is probably not (due to) mental illness in many cases, and the majority of mentally ill individuals aren’t violent,” he said, a sentiment shared by Obama in his proposals.

Still, Freilich says, gun restrictions should be made more agile, especially since restricting gun access for someone experiencing a sudden, violent mental crisis requires fast legal action, not a prolonged court process.

Freilich pointed to California, where his organization is based, where a law went into effect Jan. 1 that allows concerned family members and law enforcement agencies to ask courts to issue temporary orders that would restrict a person’s ability to buy or have guns for a short time. The Gun Violence Protective Order, Freilich said, can kick in during moments of crisis when a person presents a serious risk but hasn’t carried out a crime or been involuntarily committed to psychiatric care.

Some other states like Illinois, Massachusetts and Indiana also have in place gun restrictions based on certain domestic violence offenses, according to data compiled by the LCPGV.

Landry said he’s been “playing defense” when it comes to gun measures in the state but is speaking to groups and other legislators about possible gun restrictions that he could introduce at the Legislature.

“I see the carnage. I see the pain and suffering. I’ve gone to too many funerals,” he said. “We can’t go to vigils and light candles and expect it to go away.”

Follow Maya Lau on Twitter, @mayalau.

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